Criticism of judicial review system
Criticism of Judicial Review System
Judicial review is the power of courts, especially supreme or constitutional courts, to examine and invalidate legislative and executive actions that conflict with the constitution. While judicial review is a cornerstone of constitutional democracy, it faces various criticisms:
Common Criticisms of Judicial Review
Judicial Activism
Courts overstep their role by making policy decisions rather than interpreting law. Critics argue that judges impose their personal views rather than applying the constitution objectively.
Undemocratic Nature
Judicial review allows unelected judges to overturn laws passed by democratically elected representatives, raising concerns about the legitimacy and accountability of courts.
Lack of Accountability
Judges are insulated from political pressures and often have life tenure, which can make them unaccountable to the public or other branches.
Vagueness and Ambiguity
Constitutions are often vague, giving judges broad discretion, which may lead to inconsistent or unpredictable rulings.
Excessive Power to Judiciary
It may upset the balance of power by giving courts disproportionate influence over law and policy, sometimes termed "judicial supremacy."
Delay and Backlog
Judicial review processes can be slow and costly, causing delays in implementation of laws or policies.
Case Laws Illustrating Criticisms of Judicial Review
1. Marbury v. Madison (1803)
Context: Established the principle of judicial review in the U.S.
Criticism Highlighted: Set a precedent for courts having the ultimate authority to interpret the constitution, which critics argue leads to judicial supremacy and potential judicial overreach.
Impact: While foundational, it sparked debates about the judiciary's role versus legislative supremacy.
2. Lochner v. New York (1905)
Facts: The Supreme Court struck down a New York law limiting working hours, citing "liberty of contract" under the Due Process Clause.
Criticism: Example of judicial activism where the Court invalidated social legislation based on the judges' economic views, rather than deferring to the legislature.
Impact: Seen as the Court imposing its own policy preferences, sparking backlash and later rejection of this approach during the New Deal era.
3. Bush v. Gore (2000)
Facts: The Supreme Court intervened in the 2000 U.S. presidential election, halting the Florida recount.
Criticism: Raised concerns about undemocratic interference and politicization of the Court, where justices made a highly political decision.
Impact: Highlighted how judicial review can affect electoral outcomes, challenging perceptions of judicial impartiality.
4. Keshavananda Bharati v. State of Kerala (1973) [India]
Facts: The Supreme Court ruled that Parliament cannot alter the "basic structure" of the Constitution.
Criticism: While preserving constitutional sanctity, critics argue this gives courts extraordinary power to invalidate laws, raising concerns about judicial supremacy over elected representatives.
Impact: Sparked debates on judicial overreach and the proper limits of judicial review in India.
5. R (Miller) v. Secretary of State for Exiting the European Union (2017) [UK]
Facts: The UK Supreme Court ruled that Parliament must authorize triggering Article 50 to leave the EU.
Criticism: Seen by some as judicial activism, with courts intervening in a politically charged issue and potentially challenging democratic processes.
Impact: Raised debates on the courts’ role in political questions and sovereignty.
6. Shelby County v. Holder (2013)
Facts: The U.S. Supreme Court invalidated key parts of the Voting Rights Act.
Criticism: Seen as judicial activism with significant political implications, weakening protections against discrimination.
Impact: Sparked criticism for undermining democratic protections and the legislative role.
Summary Table of Criticism Cases
| Case | Year | Criticism Highlighted | Key Issue |
|---|---|---|---|
| Marbury v. Madison | 1803 | Judicial supremacy and overreach | Foundation of judicial review power |
| Lochner v. New York | 1905 | Judicial activism | Court overriding legislature on policy |
| Bush v. Gore | 2000 | Undemocratic interference | Political impact on elections |
| Keshavananda Bharati | 1973 | Judicial supremacy | Limits on constitutional amendment power |
| R (Miller) v. UK | 2017 | Judicial activism | Court intervention in political matters |
| Shelby County v. Holder | 2013 | Judicial activism & weakening democracy | Court striking down key civil rights protections |
Conclusion
While judicial review is vital for protecting constitutional governance and rights, it faces notable criticisms:
Activism and policy-making by courts.
Undemocratic nature and lack of accountability.
Potential to disrupt balance of powers.
These concerns fuel ongoing debates on how to balance judicial independence with democratic legitimacy.
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